1.1. Introduction
Casual work has become a social phenomenon and a cankerworm in labour relations in various industries across developing countries of the world, Nigeria inclusive. This is as a result of the deliberate policy of the multinationals in productive and service companies, which created casual workers in place of permanent labour employment. It has been argued that the shift from permanent work to casual work arrangement is as a result of employers using it to avoid the obligations associated with labour laws which are designed to protect permanent employees in standard employment.
1.2. The Emergence of Casualization in Nigeria
The practice of engaging casual workers in Nigeria for permanent positions has been referred to as casualization. It is pertinent to distinguish between a casual worker and a contract staff or contract employees. Casual employment has no written employment contract and end date. It can be terminated with no notice from either party. On the other hand, contract employment is a type of employment not permanent in nature but with a start and end date of the employment.
Casualization is a working arrangement that is not permanent in nature and does not fall within the traditional standard employment relationship.[1] Workers in this type of arrangement usually do not have a permanent job status. Also, they do not get the same pay and benefits as their regular permanent counterparts doing the same job and working the same hours.
Casualization became a feature of the Nigerian labour market in the late 1980s when the country adopted the Structural Adjustment Programme.[2] The Structural Adjustment Programme (SAP) was geared toward less government involvement in the economy and more private sector participation with the intention of revitalization of the private sector for the purpose of attracting the much-needed Foreign Direct Investment (FDI) into the country. However, this has led unemployment and lowering of labour standards, thus, the growing recourse to the casualization of labour in almost all the major industries in Nigeria.
1.3. Legal Framework of Casualization
The Nigerian Labour Act does not provide for casual workers neither does it provide a legal framework for the regulation of the terms and conditions of casual workers. However, section 7(1) of the Labour Act[3] provides that a worker should not be employed for more than three months without the formal recognition of such employment. After three months, every worker must be given an employment letter stating the terms and conditions of employment by the employer.[4] In MR PHILLIP MWAIKUOGA KWAZA v. JISHIDA PLASTICS INDUSTRIAL COMPANY LIMITED,[5] the National Industrial Court held that the non-issue of a letter of employment by the Defendant to the Claimant after three years in its employment is contrary to section 7 of the Labour Act.
Some companies have however developed sharp means to undermine this provision by employing casual workers for three months and then dismissing them and then requiring them to submit new applications before re-employing them.[6] Notwithstanding this non-orthodox means of employment, the existence of an employment relationship is primarily determined on the facts of each case. Thus, in NGUN v. MOBIL PRODUCING NIG.UNLIMITED,[7] it was held that: “Employer and employee relationship exists where a worker is employed under a contract of employment, i.e a contract of service. No one test as formulated by the Courts over the years for determining employment status of an employee is a complete answer to such questions. The Courts have held that the issue is one of fact and not of law…”
The Labour Act defines a “worker” to mean any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied, or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour.[8]
Section 73 of the Employees Compensation Act[9] defines an employee as a person employed by an employer under an oral or written contract of employment whether continuous, part-time, temporary, apprenticeship or casual basis and includes a domestic servant who is not a member of the family of the employer.
The National Industrial Court in the case of ABEL v. TREVOR FOUNDATION NIGERIA LIMITED[10] relied on the definition of an employee under Section 73 of the Employees Compensation Act to hold that the claimant who was employed by the defendant as a contract staff is an employee of the defendant and therefore entitled to compensation for injuries sustained in the course of his employment. The Court held that the definition of an employee has been extended widely by the Act to include persons engaged temporarily or casual daily workers.[11] A casual employee is therefore equally entitled to compensation just like his or her permanent counterpart where he suffers an injury in the cause of his employment.[12]
Section 17 of the 1999 Constitution[13] provides that every citizen shall have equality of rights, obligations and opportunities before the law and most importantly there should be equal pay for equal work without discrimination on account of sex or any ground whatsoever such as status of employment[14].
The NICN has relied on Trade Dispute Act and National Industrial Court Act to further highlight the non-mandatory nature of a letter of employment before an employment relationship can said to exist between an employer and an employee. In MR. JERRY AKASE & ORS v. MR. JOSEPH AMADI ODOEMENE & ORS[15] the Defendants argued that because the claimants could not show their Letters of Employment and their terms and conditions of employment with the Defendants, the claimants have failed to prove that there was any employer & workers relationship between the parties. The Court however held as follows:
“By the provision of section 48 of the Trade Dispute Act, there can be a working relationship between a casual worker and a corporate body. By the provision of section 54 of the NIC Act, 2006; an employee can be a person working for another under oral or written contract of employment. The said work can be continuous, part-time, temporary or casual; and an employer means any individual or body corporate or unincorporated who has entered into contract of service with another person.”
Premised on the forgoing decision, it is no longer enough to refer an employee as casual worker or rely on non-issuance of employment letter to deny an employment relationship or deprive an employee his entitlement on the grounds that he/she is a casual worker. There is a rebuttable presumption of employee status if there are facts showing performance of work and the remuneration of the worker, notwithstanding any contrary contractual agreement between the parties.
1.4. Conclusion
The issue of casualization of employment is a serious one that requires urgent response. The emergence of casualization and its effects, including their effects on workers’ rights, job security, etc have been clarified in this article. The implication of this is that there is need to formulate more adequate compensation policies that will protect casual workers.
There appears to be light at the end of the tunnel for casual workers in Nigeria as the House of Representatives some time in 2019 considered a motion[16] to include in the Labour Act (Amendment) Bill 2019, a section[17] criminalizing the practice of employing workers on casual contracts beyond six months while any casual worker sacked by an employer after six months will be entitled to the benefits of full-time workers for six months. This Bill if passed, may successfully combat disguised employment relationship, which occurs when the employer treats an individual as other than an employee in a manner that hides his or her true legal status as employee.
Author: Chibuzo JohnPaul Ofoha, LLM, A.CIArb (UK)
[1] Owoseye, A. and Onwe, C. (2009). Recession: Temporary Employment the Toast for Employer.
[2] Alozie, C. (2009). ‘Recession: Temporary Employment the New Toast for Employers’
[3] Section 7(1) Cap L1 LFN 2004
[4] C.S. Ibekwe, “The legal implication of employment casualisation” Nnamdi Azikwe university journal of international law and Jurisprudence, 2016, p.81
[5] SUIT NO: NICN/LA/350/2017 delivered on 21/7/2022 by Hon. Justice E.A. Oji
[6] C.S. Ibekwe op. cit. p.82
[7] (2013) LPELR-20197(CA)
[8] Section 9(1) Cap L1, LFN 2004
[9] Employees Compensation Act, 2010
[10] Suit no: NICN/PHC/55/2013, Digest of judgment of the NIC 2014, PP. 288-289
[11] C.S. Ibekwe, op. cit. p.83
[12] D.T. Eyongndi “Casual employees under Nigerian law: matters arising” accessible online at www.academia.edu/333/3972.
[13] Chapter II: Fundamental Objectives and directive principles of state policy.
[14] O.I. Ajayi “The place of female employees in labour relations” An LL.M thesis submitted to faculty of law, university of Ibadan, 2015, p.29
[15] Suit No: NIC/PHC/137/2013 delivered by HON. JUSTICE F. I. KOLA-OLALERE (FCIArb) (UK)
[16] Sponsored by Olawale Raji (APC Lagos)
[17] Section 8 of the Bill